Public Law 1 - Assignment Example

Topic: Public Law B) UK incorporated of the EC law into domestic law by European Communities Act 1972. By virtue of ss .2 2(2), and 2(4) EC law was directly incorporated. The sovereignty of Parliament is the dominant characteristic of our political institutions. Sir. A. V. Dicey expressed it as cornerstone of the constitution. To understand the concept of Parliamentary sovereignty, it is important to have a clear Knowledge of political and legal sovereignty as well as Dicey’s definition and he has introduced of this doctrine of Parliamentary sovereignty. It is important to consider whether European union’s membership, by any way attack the doctrine of Parliamentary sovereignty. Style: APA Language Style: English UK Grade: 2:1 Pages: 4 Answer: The sovereignty of Parliament is the dominant characteristic of our political institutions. Sir. A. V. Dicey expressed it as cornerstone of the constitution. To understand the concept of Parliamentary sovereignty, it is important to have a clear Knowledge of political and legal sovereignty as well as Dicey’s definition and he has introduced of this doctrine of Parliamentary sovereignty. These are: 1. Parliament is the supreme law making body and may enact law on any subject matter: This rule means that the Parliament can make or unmake any law. Parliament may grant independence to dependent states whether dominions or colonies. For example The Nigeria Independence Act 1960 and The Zimbabwe Independence Act 1979. Parliament may also legislate with retrospective effect as with The War Damage Act 1965, the HL overruled the decisions of HLs in Burmah Oil Company v Bank of England [1980] AC 1090 case. Moreover, Parliament may legislate with extra-territorial effect, i.e., making laws for other countries 1. But the only limitation for this, according to Dicey is popular resistance. Citizen of UK will first resist them to make bad laws. So, though legally and theoretically UK Parliament is sovereign and it can make and unmake any law, but practically it can be said that, Parliament cannot make bad laws or laws what ever they want. 2. No Parliament may be bound by its predecessor or bind by its successor: The doctrine of repeal is the idea that supports this theory. Now, any UK parliament can expressly or impliedly repeal any law. However, by Acts of Union, the law making power of UK and Scotland was merged that was maintain for more than 300 years. Acts of Union and the Grand of independence oppose this theory. The statute of West Minister 1931 was enacted to give statutory force to the constitutional convention that the UK Parliament would not make laws for dominions without their consent 2. 3. No one even the court of the law can question about the validity of an act of Parliament: This doctrine states that an act will be accepted by courts provided it was made by proper procedure. So, no one can question about its validity. But it is seen that citizens i.e. electorates and neighboring countries can question it. Before 1688 settlement judges proclaim an act invalid because of its conflicts with a law of higher statues 3. In Pickin v British Railway Board [1974] AC 765, Lord Read said--- Although, previous law contrary to the law of the God or the nature or natural justice can be said to be invalid, but after 1688’s revolution since the Supremacy of Parliament was finally demonstrates any such idea has become absolute. Now it is important to consider whether European union’s membership, by any way attack the doctrine of Parliamentary sovereignty. To understand and assess the question, it is necessary to look back to 1945 and a Europe that had been devastated by war: politically, economically, and socially. In the desire to attain some form of harmony in order to guarantee peace and to rebuild Europe. The Treaty on European Union (Maastricht) 1992 involved the creation of the European Union. UK incorporated of the EC law into domestic law by European Communities Act 1972. By virtue of ss .2 (1), 2(2), and 2(4) EC law was directly incorporated. Art. 221 provide that the Court of Justice will consist of fifteen judges. They are appointed is for six term of office of six years through the term is renewable. The power of the ECJ defined in Article 243. The Member States mainly, but not exclusively, in exercising its jurisdiction under Articles 173, 177 and 228(6). Implication of community law: UK parliament is the supreme law making authority. Now ECJ challenge the primary legislation if it is incompatible with community law 4. Firstly, if EC confers any rights on individuals then any national law must give effect to the EC law and domestic law cannot prevail over EC law 5. Secondly, the effectiveness of community law should be equal in all Member States and the national courts must follow jurisprudence of ECJ. Thirdly, Courts of MS must follow the interpretation of laws given by the ECJ or, where there is no authority, and under the certain condition, must refer the matter to the ECJ under Art 234 of the treaty. Art. 227. A Member State, which considers that another Member State has failed to fulfill an obligation under this Treaty, may bring the matter before the Court of Justice. Finally, if ECJ gives a ruling Member States are under an obligation to amend their national laws so as to conform to community law. In Factortame [1991] AC 603, series of cases it was held that the EC law would always prevail over domestic law. The right to damages is dependent upon three conditions. In Marleasing SA v La Commercial International de Alimentacion SA (Case 106/89) [1992] 1 CMLR 305, the ECJ held that, the court and other MS under a duty to fulfill the obligation of EC law according to Article 10. In Francovich & Bonifaci v Italy (Cases C-6, C-9/90) [1991] ECR I-5357; [1992] IRLR 84; [1993] 2 CMLR 66 it was considered that if an individual sustain damages of State Liability, MS take full responsibilities of damage. Here ECJ had contended technological approach with denial of Horizontal Direct Effect of Directives (HDE). The Direct Effect (Van Gend en Loos v Nederlandse Tariefcommissie (Case 26/62) [1963] CMLR 105) whereby the primary laws of the Treaty could be given effect directly in the Member States domestic courts. In Van Duyn v. Home Office (Case 41/74) (1975) 1 CMLR 1 Article 39 of the EC Treaty (formally Article 48) and reference was made to the ECJ provides that freedom of movement for workers shall be secured within the community law 6. The Indirect Effect was developed where, as the Member States had refused to implement the ECJ to develop the doctrine of Direct Effect horizontally. As Article 10 of EC treaty, they were under a duty to give effect to EC laws and as such a method of statutory interpretation was adopted by the ECJ under Indirect Effect (Von Colson [1984] ECR 1891, and Marleasing v La Comercial Internacionale de Alimentacion SA (Case 106/89) [1992] 1 CMLR 305). But in Webb v EMO Cargo [1992] ICR 445 HL court took liberal view by not following the EC law. So, this issue here is very much unclear 7. In Internationale Handelsgesellschaft MBH v EVST (1970) ECR 1125; [1972] CMLR 255 for the protection of civil rights and liberties, which are inspired by the traditional constitution of Member State, must be construed with the framework to fulfil the obligation of the community. Though, it is true that by entering EU, the UK’s Parliamentary sovereignty have been affected but at the end of the day it may be argued that the ECA 1972, is an ordinary act of Parliamentary which can be repealed any time Parliamentary want. So, it is the UK Parliamentary, which remain supreme. Theoretically it is true but practically UK can ever come out of the EU rather it is day-by-day becoming more attached to it. Reference: 1. Wincott D. (1999) "The Court of Justice and the Legal System" in Cram L et al (eds), Developments in the European Union (Basingstoke: Macmillan) 2. Hilaire B. (2002) “Constitutional and Administrative Law” (Cavindish Publishing Limited) 3. Michael T M. (2004) “Administrative Law” (Old Bailey Press) 4. Lee, I.B, In Search of a Theory of State Liability in the European Union, Harvard Law School, ISSN 1087 221. Table: 1 No. Name of The Cases Year 1 Burmah Oil Company v Bank of England [1980] AC 1090 2 Factortame [1991] AC 603 3 Francovich & Bonifaci v Italy [1991] ECRI-5357; 4 Internationale Handelsgesellschaft MBH v EVST (1970) ECR 1125; 5 Marleasing SA v La Commercial International de (Case 106/89) [1992] 1 CMLR 305 6 Van Duyn v. Home Office (1975) 1 CMLR 1 7 Van Gend en Loos v Nederlandse Tariefcommissie [1963] CMLR 105 8 Von Colson [1984] ECR 1891 9 Webb v EMO Cargo [1992] ICR 445 HL Table: 2 No. Name of The Statutes Year 1 European Communities Act 1972 2 The Nigeria Independence Act 1960 3 The War Damage Act 1965 4 The Zimbabwe Independence Act 1979 Read More